Citation Nr: 1443767
Decision Date: 10/01/14 Archive Date: 10/10/14
DOCKET NO. 11-21 600 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUES
1. Entitlement to service connection for a respiratory disability to include as due to undiagnosed illness.
2. Entitlement to service connection for fatigue to include as due to undiagnosed illness.
WITNESSES AT HEARING ON APPEAL
Veteran and C.R.
ATTORNEY FOR THE BOARD
M. G. Mazzucchelli, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from June 1975 to June 1999.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.
The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in December 2011. A transcript of the hearing is in the Veteran's claim file.
In a February 2014 decision, the Board remanded the claims for further development.
FINDINGS OF FACT
1. A chronic respiratory disability is not shown, and the intermittent respiratory symptoms have been medically attributed to colds or allergies.
2. A fatigue disability is not shown, and the intermittent fatigue symptoms have been medically attributed to colds or allergies.
CONCLUSIONS OF LAW
1. The criteria for service connection for a respiratory condition have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013).
2. The criteria for service connection for fatigue have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.
Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006).
The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).
The RO provided pre-adjudication VCAA notice by letters dated in May 2010 and June 2010. As for the content and the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); and of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice).
See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant n obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records.
The Veteran was afforded VA examinations in September 2010 and May 2014. As the reports of the VA examinations are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examinations reports, taken together, are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).
As there is no indication of the existence of additional evidence to substantiate the claims decided herein, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims decided herein is required to comply with the duty to assist.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Principles and Theories of Service Connection
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a).
Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d).
Because the Veteran served in the Southwest Asia Theater of operations since August 2, 1990, service connection may also be established under 38 C.F.R. § 3.317. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War.
For a disability due to undiagnosed illness and medically unexplained chronic multisymptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1).
For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.
An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9.
Further, lay persons are competent to report objective signs of illness. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. 38 C.F.R. § 3.317(a)(5); Stankevich v. Nicholson, 19 Vet. App. 470 (2006).
A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.
A "medically unexplained chronic multisymptom illness" contemplates a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities."
Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii).
For purposes of 38 C.F.R. § 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4).
"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3).
Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b).
Evidentiary Standards
VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a).
Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997).
Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).
When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance).
If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b).
Evidence
The service treatment records show that the Veteran was seen with productive cough associated with upper respiratory infection in July 1975. He was seen with a cold, including report of productive cough, in April 1977. Upper respiratory infection was noted in November 1978. Upper respiratory infection was noted in June 1987, with productive cough. Acute bronchitis was noted in June 1990.
On "over 40" examination in April 1995, the Veteran denied having a chronic cough or chronic of frequent colds. Examination of the lungs and chest were normal. A history of seasonal allergies was noted.
On examination in November 1996, the Veteran reported allergies, which were worse in summer. He denied chronic cough. Examination of the lungs and chest were normal. In February 1998 he was seen with cough and cold.
On retirement examination in January 1999, the Veteran denied chronic or frequent colds, shortness of breath, and chronic cough. He reported easy fatigability. Chest X-ray was normal.
In March 1999 he was seen with a cold. Cough and phlegm was noted.
In March 1999 the Veteran was seen for excessive nighttime snoring and daytime somnolence. A sleep study was ordered to rule out sleep apnea.
On VA general medical examination in March 1999, conducted while the Veteran was still on active duty, the Veteran did not report any complaint of respiratory problem or fatigue. No diagnosis of a respiratory disability or fatigue was made.
Following service, in April 2001 the Veteran was seen with a six month history of cough. CT of the chest in May 2001 showed a small density perhaps in the right lower lobe. CT in April 2002 again demonstrated the small nodular density. It appeared not to have changed significantly in size since the May 2001 scan.
On VA examination in September 2010, the Veteran reported that a productive cough with fatigue symptoms once or twice per year, usually in the Fall and Winter. The Veteran stated that he did not have a diagnosis of chronic fatigue syndrome. Pulmonary function tests were normal.
The diagnosis was intermittent upper respiratory cold virus with postnasal drip and productive cough and fatigue. The VA examiner stated there was insufficient evidence at present to warrant a diagnosis of chronic fatigue syndrome or chronic upper respiratory condition. The VA examiner stated that the productive cough with congestion and fatigue was consistent with allergies and not due to exposure to environmental hazards during the Gulf War. The VA examiner also summarized the service treatment records and expressed the opinion that the current intermittent cough with symptoms of fatigue was less likely as not related to complaints in service. The VA examiner noted that the Veteran had intermittent colds or upper respiratory viral illness in service, that chronic cough or fatigue was not documented at separation from service, that after service, the Veteran was not seen for a cough until 2001, and that Veteran's symptoms were e consistent with a cold and not a chronic condition, but a temporary upper respiratory viral infection.
A chest CT scan in December 2011 again showed a noncalcified nodule in the right lower lobe.
The Veteran has submitted written statements and hearing testimony to the effect that he served in Desert Storm as a Combat Medic at the 5th Mobile Army Surgical Hospital. He stated that he was stationed in Saudi Arabia and, for one week, in Iraq. He stated that his unit may have been exposed to sarin gas from a pit explosion at the Khamasisiyah Ammunition Storage Area in Southeaster Iraq in March 1991. He also submitted statements from his father and sister attesting to their noticing he had cough and fatigue symptoms after his return from the Gulf War.
The Veteran submitted documentation of sick days from his employer, but there was no documentation of the specific diagnosis or problem for which the sick days were used.
On VA examination in May 2014, the Veteran stated that about once a year he had problems with significant mucus production. The VA examiner stated that the density in right lower lobe did not cause the Veteran's symptom. The VA examiner expressed the opinion there was no evidence that the Veteran had been chronically disabled due to a respiratory condition (nodule-related or not) because the Veteran did have chronic respiratory symptoms and his pulmonary functions were normal, and the imaging studies did not indicate a current disability. The VA examiner concluded that the Veteran did not currently have a chronic respiratory disability.
Analysis
The service treatment records show that the Veteran was seen on several occasions for colds or upper respiratory infections. No chronic respiratory disability or fatigue-related disability was noted in service.
On the basis of the service treatment records alone, a chronic respiratory or fatigue was not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1110 or § 1131 and 38 C.F.R. § 3.303(a) is not warranted.
As for service connection based on an initial diagnosis after service, the Veteran has described recurring respiratory and fatigue complaints that occur several times a year.
The Veteran as a lay person in competent to describe symptoms of a productive cough and of fatigue. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person).
See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness) identify a simple medical condition. Jandreau, at 1377.
Also the Veteran as a lay person is competent to identify a simple medical condition. A simple medication is one capable of lay observation. Jandreau, at 1377. The presence of a chronic respiratory or fatigue-related disability is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, as the diagnosis of such falls outside the realm of common knowledge of a lay person, that is, a respiratory or fatigue disability is not capable of lay observation without specialized education, training, or experience.
Also a respiratory or fatigue disability is not the type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a simple medical condition, for example a broken leg, but not, for example, a form of cancer).
Applying the guidance of current case law, a respiratory or fatigue disability is more analogous to an internal disease process, rather than an observable condition such as flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, a respiratory or fatigue disability is not the type of condition under case law that has been found to be capable of lay observation.
As the claimed disability is not capable of lay observation under Jandreau and by case law, the claimed disability is not a simple medical condition, capable of lay observation.
Although the Veteran served as a medic in service and has some medical training, no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose a respiratory or fatigue disability. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence).
For these reasons, the Veteran's statements are not competent evidence on the question of the presence or diagnosis of a chronic respiratory or fatigue disability in service, since service, or currently, and the Veteran's statements are excluded, that is, not to be considered as evidence favorable to the claims.
On VA examinations in September 2010 and in May 2014, each VA examiner found that the Veteran did not have a chronic respiratory disability and that the Veteran's intermittent symptoms of cough, mucus production, and fatigue, were symptoms of allergies or colds. Further, the VA examiners determined that the lung nodule first noted in 2001 was an incidental finding that did not represent a current disability and was in any event not present during service. The VA examiners' conclusions that there was no chronic respiratory disability or fatigue condition are persuasive as the conclusions were supported by physical examinations and medical findings and provided thorough explanation of the findings.
The medical evidence of record demonstrates that the Veteran does not have a chronic respiratory disability or fatigue disability and that his complaints of intermittent cough and fatigue are symptoms of seasonal allergies or acute upper respiratory illnesses, for example, a common cold.
It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009).
In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. In the absence of proof of present disability, there can be no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
Undiagnosed or Medically Unexplained Multisymptom Illness
Finally, the Veteran has asserted that his respiratory and fatigue complaints are related to an undiagnosed illness or a medically unexplained multisymptom illness caused by his service in the Persian Gulf.
The Veteran served in the Persian Gulf from August 1990 to April 1991. He is accordingly within the period for consideration under 38 C.F.R. § 3.317.
Although respiratory and fatigue complaints are two of the symptoms cited in 38 C.F.R. § 3.317 as being characteristic of an undiagnosed illness or a medically unexplained multisymptom illness, the Veteran's intermittent cough and fatigue complaints have been medically associated with seasonal allergies or colds, which are known clinical diagnoses. Therefore, the criteria for service connection under 38 C.F.R. § 3.317 (undiagnosed illness or medically unexplained multisymptom illness) are not met.
In the absence of competent evidence of current respiratory or fatigue disability or evidence of an undiagnosed illness or medically unexplained multisymptom illness, the preponderance of the evidence is against the claims, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).
ORDER
Service connection for a respiratory disability to include as due to undiagnosed illness is denied.
Service connection for fatigue to include as due to undiagnosed illness is denied.
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George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs